SZNWQ v Minister for Immigration

[2010] FMCA 151

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNWQ v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 151

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.65, 424, 424B, 426A

Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14
Applicant M164/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 16
Minister for Immigration & Citizenship v SZNAV [2009] FCAFC 109
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39
Minister for Immigration and Citizenship v SZKTI and Another (2009) 238 CLR 489; [2009] HCA 30
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6
NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287
NAWM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 205
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
SZNAV and Others v Minister for Immigration and Citizenship and Another (2009) 229 FLR 461; [2009] FMCA 693

Applicant: SZNWQ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2152 of 2009

Judgment of: Barnes FM

Hearing date: 24 February 2010

Delivered at: Sydney

Delivered on: 24 February 2010

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed. 

2. The applicant pay the costs of the first respondent fixed in the sum of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2152 of 2009

SZNWQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal dated 12 August 2009, affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. 

2. The applicant, a citizen of India, arrived in Australia in January 2009 and applied for a protection visa.  He set out his claims in a statutory declaration accompanying his protection visa application.  He attended an interview with a delegate of the first respondent.  The application was refused and the applicant sought review by the Tribunal.

3. In his application for review, the applicant provided a residential address in Australia and, recorded the same address in response to the question as to where he wished correspondence in connection with the review to be sent. 

4. The Tribunal wrote to the applicant at that address by letter dated 6 July 2009 inviting him to attend a Tribunal hearing and informing him that if he “fail[ed] to attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable [him] to appear before it”.  The applicant did not attend the scheduled hearing.  Nor did he provide any further information to the Tribunal. 

5. In its reasons for decision, the Tribunal referred to its invitation to the applicant to attend the hearing and its satisfaction that the invitation was sent by registered, pre-paid post within three working days of the date of the letter.  It recorded that the applicant did not appear at the hearing as scheduled or attempt to contact the Tribunal thereafter to offer an explanation, or to seek a hearing.

6. In those circumstances, pursuant to s.426A of the Migration Act 1958 (Cth), the Tribunal was satisfied it had discharged its obligation to give the applicant an opportunity to appear before it to give evidence. It decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

7. In its findings and reasons, after summarising the applicant’s claims, the Tribunal reiterated that the applicant had not availed himself of the opportunity to attend the hearing, stated that it had considered the material he provided in his application and the interview with the Department, but that it was “not satisfied with the veracity of the claims”.  The Tribunal explained that if the applicant had attended the hearing, it would have asked him about specified aspects of his claims and about his allegations. 

8. The Tribunal summarised the applicant’s claims, but found on the evidence before it that it was not satisfied that he had established a car-trading business in Mumbai with a business partner or that he was a supporter/member of the BJP and regularly made financial contributions to the BJP.  Nor was it satisfied on the evidence before it that “in 2007 the applicant and his business partner expanded their business and made a new deal with a [named] car dealer…who advised him to donate some money to one of the Muslim Congress leaders” or, that the applicant refused to give political donations to the Congress Party;  that the car dealer was “not happy with his decision and that in eight months blocked almost 20 million rupees from their business”.  It was not satisfied that the applicant and his business partner were unable to achieve a satisfactory result when they tried to contact the car dealer’s business;  that they reported the matter to the police;  that the car dealer and four others assaulted the applicant with a metal pipe in October 2007 or that they escaped the police by bribing them.

9. Nor was the Tribunal satisfied with the applicant’s claims in relation to his treatment by his creditors.  In particular, it was not satisfied that he was threatened by creditors, or that in an October 2008 meeting “the applicant was attacked and beaten” and was unable to make the creditors “understand that they were the victims of [the car dealer]” and that he had “lost everything” because of that person. 

10. The Tribunal was “not satisfied on the evidence before it that the applicant was accused of donating money to the BJP underworld members to kill Muslims in Mumbai”; that he was accused of not being a “genuine businessman”; that his unit was ransacked and all valuable goods taken; that he and his wife were threatened, and his wife told they would return, or that he had the concerns he expressed about his wife’s safety in India.

11. Not being satisfied with these claims, the Tribunal was not satisfied on the evidence before it that if the applicant returned to India now or in the reasonably foreseeable future there was a real chance he would suffer discrimination or harassment for reason of his religion, political opinion, or imputed political opinion, involving serious harm constituting persecution.  Hence it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason. 

12. The applicant sought review by application filed in this court on 4 September 2009.  He did not file any amended application or written submissions and when given the opportunity in the hearing today to address the grounds in his application, had nothing to say.  Nonetheless, I have considered the grounds in his application and those raised in his supporting affidavit filed on 4 September 2009.  These matters were addressed by the solicitor for the first respondent. 

13. I note first that in circumstances where the applicant did not attend the Tribunal hearing, the remarks of the Full Court of the Federal Court in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at [5], are apposite:

    Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate.  When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.

14. The same may be said in this case. 

15. In ground one, the applicant claimed generally that the “Tribunal failed to comply with s424 of the Migration Act 1958”, that the invitation (although it was not specified which invitation was in question) was “not given in accordance with ss424(3)(a) and 424B of the Migration Act” and that it “did not specify the way in which the additional information may be given” or “the period within which the information was to be given”.

16. The solicitor for the first respondent addressed the possibility that the applicant was endeavouring to rely on the sort of argument accepted by Raphael FM in SZNAV and Others v Minister for Immigration and Citizenship and Another (2009) 229 FLR 461; [2009] FMCA 693 in relation to the letter of the Tribunal acknowledging receipt of the application. Such an argument is no longer available in light of the decision of the High Court in Minister for Immigration and Citizenship v SZKTI and Another (2009) 238 CLR 489; [2009] HCA 30 and the decision of the Full Court of the Federal Court on appeal in Minister for Immigration & Citizenship v SZNAV [2009] FCAFC 109. As the law now stands, such a ground must fail.

17. No adverse consequence flowed to the applicant from his failure to provide material or written arguments in response to the Tribunal’s letter of 29 June 2009, acknowledging receipt of his review application. Neither s.424(3)(a) nor s.424B of the Act was engaged. It has not been established that there was a failure by the Tribunal to comply with s.424 of the Act in this or any other respect.

18. The second ground is that “[t]he Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.” No particulars are given in relation to which requirements of the Act were allegedly not met.  There is nothing in the material before the court to support such a generally expressed contention.  Nor, in the circumstances set out above, is the Tribunal’s lack of satisfaction such as to establish that its decision was not arrived at in accordance with the requirements of the Act. 

19. As the Full Court of the Federal Court pointed out in Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [17], as s.65 of the Act and Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 make clear, s.65 “requires a visa to be rejected in the absence of a positive finding of satisfaction.  It does not require the visa to be granted in the absence of an adverse finding”.  Their Honours referred to the fact that “findings of fact [we]re not necessarily required to support a state of non-satisfaction”. 

20. This is not a case in which it has been established that the Tribunal’s state of satisfaction was not formed reasonably upon the material before it (see Applicant M164/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 16). Ground two is not made out.

21. Ground three is that “[t]he Tribunal’s decision was unjust and was made without taking into account the full gravity of the applicant (sic) circumstances and the consequence of the claim.”  Contrary to the contention that the Tribunal did not take into account the full gravity of the applicant’s circumstances and the consequences of his claim, in this case the Tribunal was unable to be satisfied on the material before it with the veracity of the applicant’s claims.  Such an approach does not demonstrate jurisdictional error.  Insofar as the applicant takes issue with the Tribunal’s conclusions, that seeks impermissible merits review. 

22. It has not been established that the Tribunal failed to take into account any integer of the applicant’s claims or that it overlooked any claim or circumstance alleged by the applicant.  Nor has it been established that the Tribunal procedure was unjust or that an aspect of the decision was such as to constitute jurisdictional error in the manner contended for in this ground.  Ground three is not made out.

23. Ground four is that the “applicant satisfy (sic) the four key elements of the Convention definition … The Tribunal has not considered this aspect and therefore committed factual and legal error”.  This seeks impermissible merits review.  No jurisdictional error is established on this basis. 

24. Ground five is that the Tribunal “failed to investigate applicant (sic) claim, specially the grounds of persecution, in India” and therefore that the Tribunal decision was affected by actual bias.  Insofar as this is a claim about a failure to investigate, there is no evidence that the applicant sought any investigation by the Tribunal and nothing was raised before the court or identified as a matter that should have been investigated by the Tribunal.  The High Court made clear in the Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 that it is only in limited circumstances that a failure to make an obvious inquiry about a critical fact may give rise to a constructive failure to exercise jurisdiction. It has not been established that this is such a case and no jurisdictional error is established on this basis.

25. More generally, this is a case of the nature identified in Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14, in that it was for the applicant to put before the Tribunal material in support of his claims and for the Tribunal to determine whether it was satisfied as required under s.65 of the Act.

26. Insofar as there is an allegation of actual bias, such an allegation must be clearly alleged and proved.  There is no explanation in this case as to what it is that is said to constitute bias, other than the claimed failure to investigate.  The failure to investigate is not such as to establish either actual bias or apprehended bias from the perspective of the appropriately informed lay observer (see Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28). The applicant has not provided any other particulars of the bias and there is no evidence before the court to support any claim of actual or apprehended bias, whether based on the Tribunal procedures or the Tribunal reasons for decision. Ground five is not made out.

27. For the sake of completeness I note that in the affidavit accompanying his application for review the applicant contended that the “Tribunal member failed to analyse properly the “future harm” [he] may face if [he had] to go back to India” and hence failed “to assess or carry out the ‘real chance’ test, before dismissing [his] claims”.  However no jurisdictional error is established on this basis. 

28. As set out above, the Tribunal was not satisfied on the material before it that the applicant had established his claims about past events or harm in India and on that basis was not satisfied that if the applicant returned to India there was a real chance that he would suffer serious harm constituting persecution.  It was open to the Tribunal to conclude on the limited information before it that there was no such real chance of future harm. 

29. Insofar as the applicant takes issue with the Tribunal’s conclusion, that seeks impermissible merits review.  The Tribunal’s reasoning has not been shown to be affected by reviewable error.  As no jurisdictional error has been established, the application must be dismissed. 

30. The applicant has been unsuccessful and the Minister seeks costs in the sum of $3,500.  There is nothing in the circumstances of this case to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the first respondent.  The amount sought is appropriate in the light of the nature of this and other similar matters. 

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  12 March 2010